Caetano v. Massachusetts (Amicus SCOTUS)

Massachusetts Supreme Judicial Court
United State Supreme Court
Comm2A: Amicus Curiae



On March 21, 2016 the US Supreme Court issued an unsigned (per curiam) decision reversing the Massachusetts Supreme Judicial Court and remanding the case for further proceedings. 

Question Presented:

Whether the Second and Fourteenth Amendments protect a right to keep and bear weapons that are less deadly (but also less common) than handguns.

After being beaten so severely she required hospital treatment, Defendant Jaime Caetano left an abusive relationship with the father of her two children. Caetano, who stands at all of 4’ 11” tall and, despite the presence of numerous restraining orders, continued to be harassed by her ex-boyfriend who would continually show up at her workplace. Homeless and in fear for her life, Caetano accepted a “stun gun” from a friend as means to defend herself.

In the fall of 2011, Caetano was arrested and charged for possession of a “stun gun”, in violation of Massachusetts General Law ch. 140, §131J, which imposes a near-total ban on all electric-based weapons in the Commonwealth. Despite presenting the aforementioned facts, Caetano was convicted of the §131J violation after a bench trial. Caetano appealed, and the Supreme Judicial Court agreed to hear her case.

This appeal of Caetano’s conviction focuses on two major questions:

  • Whether G. L. ch. 140, s. 131J, which criminalizes the private possession of so-called stun guns, infringes on the Second Amendment right to keep and bear arms as defined by the Supreme Court’s Heller and McDonald decisions;
  • Whether, and how, the Second Amendment protection applies outside one’s home in the case of a homeless person.

While the case itself concerns “stun guns”, how the Supreme Judicial Court answers these questions carries massive implications as how the Second Amendment is interpreted in the Commonwealth. As a result, Comm2A has filed an amicus brief submitted by Attorney Keith Langer on behalf of Plaintiff Caetano.

The first question asks the Supreme Judicial Court to define the scope of “arms” protected by the Second Amendment. While generally thought of as a right to keep and bear firearms, the Second Amendment’s scope is actually far broader, encompassing arms of all types. Electric weapons are made with the goal of the user’s self-defense, a fundamental right as held in the seminal Second Amendment cases District of Columbia v. Heller and McDonald v. Chicago.

The second question asks the court to define the physical scope of the Second Amendment. While numerous state and lower federal courts have found a Second Amendment right to possess arms outside the home, there has yet to be a decision in Massachusetts holding the same. This has the effect of depriving those like Caetano, who are homeless and may have a reason to fear for their safety, a means to engage in the fundamental right of self-defense, unable to keep their arms in a location where the Second Amendment has been held to apply.

Comm2A's brief was submitted by attorney Keith G. Langer.


The SJC issued their decision in this case on March 2, 2015, rejecting virtually all of Caetano's claims and upholding her conviction on charges of illegal possession of a stun gun.  The court made a number of determinations that will have long lasting implications for how Massachusetts courts deal with Second Amendment claims.  As the SJC is the highest court in the Commonwealth, these rulings will stand unless the US Supreme Court issues rulings that directly contradict the SJC's holdings in this case.

The central holdings of the SJC's decision are that self defense outside of the home is not 'core' to Second Amendment and that stun guns of the type carried by Caetano are not protected by the Second Amendment because they are 'dangerous and unusual' and not in common when the Bill of Rights was enacted in 1791. 

The conduct at issue in this case falls outside the "core" of the Second Amendment, insofar as the defendant was not using the stun gun to defend herself in her home, and involves a "dangerous and unusual weapon" that was not "in common use at the time" of enactment.

Without further guidance from the Supreme Court on the scope of the Second Amendment, we do not extend the Second Amendment right articulated by Heller to cover stun guns.  (page 8)

 The SJC took a particularly broad swipe at the stun gun issue rejecting their Second Amendment protection because they are dangerous and unusual and not in 'common use' at the time when the Second Amendment was enacted. 

For reasons that follow, there can be no doubt that a stun gun was not in common use at the time of enactment, and it is not the type of weapon that is eligible for Second Amendment protection. (page 11)

The recent invention of this weapon clearly postdates the period relevant to our analysis. We therefore conclude that stun guns were not in common use at the time of the Second Amendment's enactment. (page 12)

Even were we to view stun guns through a contemporary lens for purposes of our analysis, there is nothing in the record to suggest that they are readily adaptable to use in the military. Indeed, the record indicates "they are ineffective for . . . hunting or target shooting." Because the stun gun that the defendant possessed is both dangerous per se at common law and unusual, but was not in common use at the time of the enactment of the Second Amendment, we conclude that stun guns fall outside the protection of the Second Amendment. (page 12)

 SJC History:

US Supreme Court Docket 14-10078 Caetano v. Massachusetts

  • 06/01/2015 -- Petition for writ of certiorari and motion for leave to proceed in forma pauperis
  • 08/11/2015 -- AWARE amicus brief in support of certiorari
  • 08/12/2015 -- Comm2A amicus brief in support of certiorari
  • 10/13/2015 -- Commonwealth's opposition to certiorari
  • 10/27/2015 -- Petitioner's reply brief
  • 12/08/2015 -- Records Requested
  • 03/21/2016 -- Per Curiam Decision